November 12, 2005

So said Keith Findley, co-director of the Innocence Project, here at the University of Wisconsin Law School, speaking about Steven Avery. The Innocence Project did the legal work that freed Avery, who had already served 18 years for a rape that, evidence showed, he did not commit.

Steven Avery, the Mishicot man who served 18 years in prison for a rape he didn't commit, will be charged with the murder of a 25-year-old woman who disappeared on Halloween, Calumet County District Attorney Ken Kratz said Friday.

Avery, 43, was the last known person to see Teresa Halbach alive, and his blood was found along with hers in her sport utility vehicle, said Kratz, who expects to file charges early next week.

The police worry that they will be accused of framing Avery:

Kratz and police officials sought to swiftly dispel any notions that Avery is being wrongly accused of a heinous crime for a second time or that Manitowoc County law enforcement officials are trying to frame him. Avery has a pending $36 million lawsuit against the county for wrongful imprisonment.

Kratz said that after Halbach's SUV was found Saturday on the Avery property by a volunteer searcher, it was immediately sealed in a container and wasn't searched until it arrived at the state Crime Laboratory in Madison. No local police had access to it, he said.

And Kratz called it "absurd" that anyone would think that someone trying to frame Avery would not only be able to plant a key in Avery's bedroom but also would be carrying around a vial of his perspiration or some other item with his DNA.

Should Innocence Project be called into question because one freed man goes on to commit another crime? That hardly makes sense, but the passionate feeling for the victim, Teresa Halbach, is very strong -- quite understandably. I'm sure people who work on the Innocence Project are feeling a lot of pressure. I'm getting phone calls and email about it, even though I do not work on the project.

In agreement with Whit, only evidence tampering would cast any aspersions on the Innocence Project's work.

I suspect the defense will also use the assertion that the state made a criminal out of Avery by improperly incarcerating him for 18 years. (If it appears likely that he will be convicted.) Ye olde 'Twinkie' defense.

If convicted and ordered to serve life without parole, the state could declare the 18 years as 'time served'.

He may have been innocent before, and may be guilty now. This reflects poorly on the Innocence project only by proximity, and differs substantially from Norman Mailer's fiasco with Jack Henry Abbott, author of In the Belly of the Beast, who murdered a man just six weeks after being released from prison, an event made possible only by Mailer's efforts.

It's wierd, to be sure. Was Avery already a violent man, but imprisoned for another's crime? Or did incarceration change him?

The concidence is amazing, and not without meaning. It does seem to offer circumstantial (not sure that's the right word here) evidence casting some doubt on the exonerating DNA test. I think you could construct a statistical model demonstrating it to be highly unlikely - three sigma out - that a completely innocent man in the earlier case would then turn out to have this kind of propensity after all.

The pending $36 million lawsuit makes me doubt the "jail changed him" idea, though it's possible. Personally, not being a fugitive from a chain gang, I have no real idea of the effect.

At the time of P.B.'s assault, the sheriff's department was familiar with Avery from an incident that had occurred only six months earlier, in January 1985, in which Avery ran a deputy sheriff's wife off the road at gunpoint and told her to get in his car. The woman told him that she had her baby in her vehicle and that the baby would freeze. After checking to see if the child was in fact in the car, Avery let the woman go. He confessed to the crime and stated that he had done this because the woman had been making allegations that he appeared naked in his front yard on several occasions. Avery was ultimately convicted of endangering safety for this offense and was sentenced to six years imprisonment, concurrent with the sentence in the assault against P.B. District Attorney Vogel told investigators that he assumed that the January incident involving Avery was sexually motivated. Avery was also convicted in Manitowoc County in 1981 of two counts of burglary, for which he received five years of probation, and was convicted in 1982 for cruelty to animals. These cases were not handled by Vogel, but by assistant prosecutors in his office."

Ann: if you're not involved with the project, why would people be getting in touch with you? Do you have some sort of expertise in the relevant area of the law? Or are they getting in touch with you merely because you have become a well-known name in the blogosphere?

It does seem to offer circumstantial (not sure that's the right word here) evidence casting some doubt on the exonerating DNA test.

I can hardly see how this affects the DNA evidence at all. Deoxyribonucleic acid is unique to each person (save for identical twins). Nor does being exonerated of rape using that DNA contravene the possibility that you have done, or will do, any number of other crimes.

All the DNA evidence proves, in any case, is that a particular person has or has not done one particular crime. It does not shed any light on character or the propensity to do other crimes.

It's like drug testing before starting a new job. A person might pass the drug test, which only proves that at that given time frame he has not been involved with drugs; the test does not prove that a person was not taking drugs in the past, or will never do drugs in the future. Or that he does not beat his wife.

People read too much into DNA testing or any scientific evidence, expecting it to prove sainthood. The testing is just one tool used in a democratic society to keep persons from being punished for crimes they did not commit, and the Innocence Project should be under no pressure (though they will of course).

(Who knew O.J. lawyers Scheck and Newfield would have such a wide ranging, and largely positive, role in the world as founders of I.P. I always knew it was Scheck, not Cochran, who saved O.J.'s guilty fanny).

Why contact me? I assume lots of contacts are being made and that Pray and Findley are hard to reach. The Innocence Project is part of the Law School and my name and contact information are on the Law School's site. I don't have special expertise here.

I'm sure the Innocence Project has a long waiting list of folks asking for their services. I wonder how they decide which case to take on? Had there been DNA or other evicence exonerating this guy before IP got involved? Did they know that this guy had been prepared to abduct another woman just six months prior? Should his case have gone closer to the bottom of the pile?

A similar high-profile case in my neck of the woods -- in which the accused was cleared through DNA testing (of a 10-year-old semen stain on a shirt hidden away in the evidence locker) just before his death-penalty trial -- had a similar, if less terrible, outcome: The guy is suing the county from prison, where he was sent on (iirc) drug and robbery charges.

Sometimes the police get the wrong guy, but the guy they get is rarely a church deacon. Even dirtbags have rights, though.

I was making a statistical point, observing that the science of statistics would seem to contradict the science of DNA here. The "coincidence" looked massive, and coincidences can be quantified: in this cae, by quantifying the likelihood of an average man being the type to actually commit rape and murder. (It's a very tiny percentage, i was assuming.)

But anyway, the seeming coincidence was then explained. Wasn't that much of a coincidence, it turned out. This guy wasn't just an avaerage guy with no visible propensity.

If you drop a piano from a helicopter into a crowd, there's a probability greater than zero that one of the people you flatten would have gone on to commit a crime. The probability increases slightly if it's a grand piano rather than an upright.

I was making a statistical point, observing that the science of statistics would seem to contradict the science of DNA here. The "coincidence" looked massive, and coincidences can be quantified: in this case, by quantifying the likelihood of an average man being the type to actually commit rape and murder. (It's a very tiny percentage, i was assuming.)

I may be misunderstanding, but I think that a component of my main point would be that in a DNA case, propensity or statistical likelihoods--of anything--are beyond the scope of what DNA gives you, and therefore no contradictions can be found unless you are assigning to DNA powers beyond its scope.

And again, I might be misunderstanding your point as well. It's early in the day.

Avery was not an ideal citizen when he went to prison for the crime he didn't commit.

Doubtless, he learned many bad things in prison also. Certainly, knowing all that time that he was innocent could not have inspired him to a blameless life, let alone taught him interpersonal skills.

IF he killed this poor woman, it casts no doubt on the injustice of his earlier incarceration.

Now is the time, for us lawyers at least, to stand behind the heroes at the Innocence Project and work against the Republicans in the Wisconsin legislature who will, undoubtedly, introduce legislation --God knows what it will look like-- to remedy the "injustice" of this man-who-got-away-with-it-only-to-sin-again.

Bad luck for Avery's lawyer in the civil suit. He should have settled a few weeks ago. You couldn't sell his claim on eBay for a hern!